Category: Police and Policing

Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

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Today a “senior ally” of the Prime Minister appeared to place improper pressure on the police

11th February 2022

This was an interesting tweet from earlier today:

So much to unpack in this.

But perhaps the most striking thing is that such an utterance was made at all.

The journalist is experienced and well-regarded, and so we can safely assume this was said by someone.

Journalistic convention means “senior ally” could mean a range of people – including Boris Johnson himself – but it would be someone significant.

And what is this “senior ally” doing with this speech act?

Well.

It appears that they are seeking to influence the police investigation.

Indeed, in this context, the statement quoted could even amount to an attempt to intimidate or otherwise wrongly place pressure on the police.

You may remember that the Prime Minister said that there would not be “a running commentary” on the police investigation.

Well, this quoted remark is more of  “a getting carried away” commentary.

The correct position for the police would be to disregard such a statement – though it may irk them into imposing a sanction just so to show their independence.

And the correct position at Johnson’s end would be for a “senior ally” to have not said this at all.

But looking at the two Swinford tweets above, you get the sense that this is some “barrack-room” (or “cabinet-room”?) non-lawyer coming up with some clever-clever line – though one which would not survive contact with legal reality.

Such spinning and framing may work with the lobby, and thereby influence media processes, but it will not work with a legalistic process.

Wrong tool, wrong job.

Since that reported statement, it would seem wiser “allies” are aware of the unfortunate impression that statement gave:

That Downing Street even had to put out such an assurance is, by itself, telling.

It tells us that there are some in Number Ten who realise the legal danger the Prime Minister is in – and that effectively taunting the police is not a sensible tactic.

Perhaps this strange moment will be forgotten – but what may linger is the sense  that Johnson – either through his “senior allies” or otherwise – has a lack of seriousness about his legal peril.

That grave problems can be got out of by such desperate expedients.

Johnson and his “senior allies” should brace, brace.

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The Resignation of a Metropolitan Police Commissioner

10th February 2022

This evening the Commissioner of the Metropolitan Police announced their resignation.

Good.

This was the senior police officer who supervised the operation that resulted in the murder of Jean Charles de Menezes and who obstructed the work of the Daniel Morgan inquiry.

This was the senior police officer who acted more like a shop steward for their police officers rather than the people’s commissioner of the police.

They were forced to resign.

Good.

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But.

There is a problem here beyond the failings of this one senior police officer.

A structural problem about how the Metropolitan Police is a law unto itself – an effectively ungovernable mass of individuals permitted to routinely inflict coercive force on others without any meaningful accountability.

Yes: it is a Good Thing that the police are not under the direct power of any minister or other politician – that the police have absolute operational independence.

But this absolute operational independence should not be at the cost of an absolute lack of accountability.

Power tends to corrupt, and coercive power tends to corrupt absolutely.

As and when there are failings of the Metropolitan Police there is a mix of defiance (the “thin blue line” or “not in their shoes”), evasion and misdirection, and sometimes outright misinformation.

Any response, in fact, other than accepting and owning mistakes.

And these are the officers who can inflict their coercive powers on others on the basis of mere ‘reasonable suspicion’ – but refuse to be accountable to the public even on the basis of virtual certainty.

How do you solve this problem?

How do you have a police force that is operationally independent of the government – but also does not become an unaccountable abuser of its own powers?

Who should watch the watchmen – and how?

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Two things about the launch of the Met’s Downing Street investigation

25th January 2022

Well.

Downing Street is now bing investigated by the Metropolitan Police.

And we are told that the Sue Gray report will not be ‘paused’ – and that it may even be delivered to the Prime Minister this evening, with it being published tomorrow.

What can be usefully said about this?

Perhaps two things.

First, look (again) at the Terms of Reference – that is the best corrective to getting carried away with what the report may or may not include.

In particular note that it is structured as a fact-finding exercise.

Indeed, had Gray been tasked with apportioning culpability then there may have been reason for the report to be delayed pending the police investigation.

What Downing Street gained by making it a fact-finding exercise they lost by not having a plausible excuse for it to be delayed at this stage.

And second, note that the Terms of Reference say:

“As with all internal investigations, if during the course of the work any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused. Matters relating to adherence to the law are properly for the police to investigate and the Cabinet Office will liaise with them as appropriate.”

This probably means that a government lawyer has had to advise on whether the threshold has been met for evidence to be referred to the police.

And – if so – this means that on that advice, Sue Gray has been satisfied that evidence does need to be referred.

In essence: for this evidence to be referred a government lawyer and a senior official have already had to be satisfied of its seriousness.

And, in commencing an investigation, the police concur.

This does not mean that anyone is necessarily guilty.

Suspicion does not mean guilt.

But.

The evidence uncovered is so serious that a certain threshold has been met.

Brace brace.

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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Why the prime minister and other politicians should not be wearing police uniforms

7th December 2021

One of the wisest political decisions in the inter-war years was to ban political uniforms:

They knew in the 1930s that the combination of uniforms and democratic politics is not a happy one.

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This blog has previously been critical of the Home Secretary for wearing an especially designed police uniform and attending a police operation:

Not even Winston Churchill wore a police uniform as Home Secretary in similar circumstances:

One perhaps hoped that the Home Secretary’s wish to dress up in police uniform was a one-off.

But no.

Now we have this spectacle:

We have the very Prime Minister wearing a police uniform.

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Does it matter?

Surely there is no harm in politicians wearing fancy dress?

And perhaps there is no harm in them doing so, as long as they look silly when they do.

But.

A distinction between the police and the civilian politicians to whom they are accountable is a good thing.

The blurring – even removal – of that distinction is, in turn, a bad thing.

The distinction is a mark that we are not a police state – and a mark that we are not in any way approaching a police state.

It is a line – a police line, if you will – which should not be crossed.

Even for promotional photographs.

And already we are at a stage where ministers are expected to have at least two United Kingdom flags behind them in official photographs and films.

That would have too seemed odd for a British politician not so long ago.

Visual rhetoric and paraphernalia is potent, sometimes toxic.

The legislators of 1936 were sensible enough to halt political uniforms in the United Kingdom before it went too far.

A similar prohibition on politicians in uniform would also be a wise move.

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The UK state’s admitted collusion in the death of Pat Finucane should inform public debate on immunities for state agents and operatives

31st October 2021

My column in Prospect this month is on the ‘licences to kill’ that exist in the law of the United Kingdom.

But in case any person thinks that article is alarmist or somehow academic in averring the existence of such provisions and their implications, reference should be made to the circumstances of the death of Pat Finucane.

These circumstances are not as well known as they should be, and they should inform any consideration of the law and practice of lethal force by or on behalf of the United Kingdom.

These are three things to know.

First: the lawyer Pat Finucane was killed in 1989.

Second: in 2012, Sir Desmond Da Silva, the author of a government-commissioned report, concluded:

“Overall, I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the State. […]

“The real importance, in my view, is that a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”

(Paragraph 115 here.)

Third: the then prime minister of the United Kingdom David Cameron admitted and apologised for this collusion:

“The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agencies in murder, is totally unacceptable.

“We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise.

“Collusion should never, ever happen.

“So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.”

(Column 297 here.)

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There is, of course, a lot more that should be known about the killing of Pat Finucane by anyone interested in the history of Northern Ireland and in the history of the United Kingdom state.

But it should be more widely known that there is no doubt that the United Kingdom state colluded in the death of a civilian and the United Kingdom state has admitted and apologised for its collusion in this death.

This is therefore not the extreme accusation of some anti-government agitator but the confirmed position of the United Kingdom state itself.

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And so the possibility is not fanciful that powers and immunities that the United Kingdom state confers upon itself may be misused by the United Kingdom state.

The possibility of misuse is such that there should be anxious scrutiny of these powers and immunities.

The United Kingdom state does not say that it wants to kill people.

But by granting itself – and its officials and operatives – immunity from any legal liability, it is creating a situation where there is no legal disincentive from ensuring unlawful deaths do not happen.

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The “I will make something up…who are they going to believe, me or you?” police officer only gets a written warning – and why this matters after the Sarah Everard murder

2nd October 2021

The news in the United Kingdom has been dominated in the last few days by the murder of Sarah Everard by a serving policing police officer by means of his police powers – for which the murdering police officer received an exceptional whole-life sentence.

There have been some dreadful (if not surprising) responses – such as the preposterous metropolitan police statement that those who doubt the credentials of an arresting officer should ‘wave down a bus’ (see this blog yesterday).

Another inane statement was made by a Conservative politician and crime and police commissioner.

Sarah Everard should have been more “streetwise about the law”:

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This strange view that one should challenge an actual police officer prompted memories of an incident last year in Lancashire.

Watch this video of a confrontation – watch it a few times, so the content of the exchange sinks in:

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Here the police officer actually shouts at someone challenging his power of arrest:

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

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Presumably the citizen here challenging the police officer was not being streetwise enough.

Presumably the citizen should have waved down a passing bus, so that the bus driver could adjudicate.

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So whatever happened to this police officer?

The police officer here is conducting himself in such a way as to undermine police officers everywhere, and indeed so as to undermine the rule of law.

Presumably this conduct would have the most serious of sanctions, and this officer would no longer employed be in the police force.

And his colleague stood by watching this happen, as if it was a normal part of a police officer’s working day.

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Well.

All that happened is that the officer received a mere written warning.

This was reported just over a month ago, some fifteen months after the incident.

All the Lancashire police said was:

“A misconduct meeting has been held in relation to this matter and the officer involved has received a written warning.

“The matter is now concluded.”

The officer is not named and he is presumably continuing with his police work otherwise unaffected by what happened.

The Independent Office for Police Conduct (IOPC) provided more information:

 ‘At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity, discreditable conduct, authority, respect and courtesy, use of force; and duties and responsibilities.’

Let’s break this down.

This means the police officer accepted he acted:

– with a lack of integrity,

– discreditably,

– with a lack of authority, respect and courtesy, and

– in breach of his obligations in respect of the use of force, respect and courtesy.

And for all these admitted failures, the police officer did not even get a final written warning, let alone anything more onerous.

Perhaps if he is filmed doing this again, he may be given a final written warning – because then it would be really serious.

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The full IOPC statement is here and it is dated June 2021.

It states (with my comments in brackets):

“During our investigation, which was completed in December, we obtained accounts from the two police officers involved in the incident as well as the complainant and one other man who was there at the time.

‘We reviewed the video footage and a number of other police witnesses provided statements.

[One can bet they did.]

“Neither of the police officers were wearing a body-worn video camera.

[What a surprise.]

“We found that when police arrived, they found themselves blocked by a van and a car. The complainant was one of four men present at the time who were requested to move the vehicles.

[They evidently brought it on themselves.]

“Only part of the interaction between the police officer and the complainant was caught on camera.

[And that presumably lessens the seriousness of the particular exchange recorded.]

“We found one officer had a case to answer for misconduct. At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity; discreditable conduct; authority, respect and courtesy; use of force; and duties and responsibilities.

“He was given a written warning.’

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The impression given by that last sentence – and the impression the BBC converted into a statement of fact in its report – is that it was the IOPC that imposed the sanction.

But usually the IOPC reports, and it is the particular force that imposes the sanction.

So I asked the IOPC about this yesterday, and they told me:

“at the end of an investigation we determine whether an officer has a case to answer for misconduct or gross misconduct. The force will then arrange disciplinary proceedings (if required) and it is for the person (or panel in some cases) in charge of that hearing to determine whether the case is proven and, if so, what the sanction should be.”

So it was the Lancashire police who gave the written warning, and not (as the BBC reported) the IOPC.

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And what about the police officer who just looked on as this officer shouted his threats about making things up?

The IOPC said:

“The other officer whose conduct we investigated was found to have no case to answer.”

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Lancashire police assert that the matter is “now concluded”.

Concluded, that is, with a mere written warning, with the officer keeping his anonymity and presumably he is carrying on policing citizens.

And presumably he is also giving evidence regularly in court on which convictions are supposed to rely.

Who is the court going to believe?

Him or the defendant?

A police officer who freely – and loudly – threatens that he will make things up when his credentials are challenged.

And the court will not know any different.

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“The matter is now concluded.”

But.

The matter is not “concluded” – certainly not in this post Sarah Everard age.

It is not good enough that behind closed doors, in secrecy, mild sanctions are imposed for conduct which even the officer admitted was in breach of so many rules of conduct.

This is ‘closing of the ranks’ – but in a systemic and structural way, rather than as a matter of mere police culture.

And there will be many who will not be surprised at the police misconduct here:

Street wisdom is no help.

Waving-down a bus will not make a difference.

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That a police officer who shouts loudly that he will make something up when challenged will keep his job and his anonymity – and will presumably carry on policing citizens and providing evidence to courts – is an absolute counterpoint to the assertions that citizens when confronted with an arresting officer can do anything other than comply.

For who would a court believe?

The serving police officer with a warrant card?

Or the arrestee?

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

Who indeed.

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Why the advice of the Metropolitan Police that those concerned by wrongful arrest ‘wave down a bus’ is besides the point

1st October 2021

The metropolitan police have published statement in response to the public concern about the case of Sarah Everard, who was murdered by a police officer using his police powers.

The statement is here.

In the final part of the statement there are suggestions about what to do if you are arrested by a lone plain clothes officer, and it concludes with this advice:

‘If after all of that you feel in real and imminent danger and you do not believe the officer is who they say they are, for whatever reason, then I would say you must seek assistance – shouting out to a passer-by, running into a house, knocking on a door, waving a bus down or if you are in the position to do so calling 999.’

Waving down a bus.

Just think about this.

As the estimable Hannah Rose Woods avers:

Imagine the scenes of a person challenging what may be a lawful arrest by stopping a bus and getting the bus driver involved.

It would probably end up with the hapless bus driver being arrested as well.

One gets the sense that the writer of this police statement had, by the end of it, ran out of ideas and was winging it like an unprepared student in the last half-hour of an examination.

But even the other advice in the statement is unrealistic and misconceived.

Anyone challenging arrest can say hello to the offence of resisting or wilfully obstructing a constable in the execution of their duty.

They may also say hello to Mr Taser.

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Telling you how to vet whether someone stopping you in the street is actually a plain clothes police officer is rather besides the point, when it is the actual police officers that are the problem.

For this is the problem with the Everard case.

The murderer was a police officer, using police procedure.

The problem is not about public confidence about whether these people are police officers or not.

The problem is that they are police officers.

Here consider these two tweets from the writer Eleanor Penny:

She is absolutely right.

The problem is not that this murder was a ‘wrong un’ – a bad apple, and so on.

A problem is the immunity and impunity with which police officers routinely and casually use their coercive powers.

They know they can use their coercive powers at will, with no real accountability.

The powers of stop and of arrest are so general, and the thresholds they have to meet (or say they meet) are so low, that they can freely inflict what would otherwise would be an assault as they wish.

And even if, in a particular instance, an officer exceeds their authority, there is no real consequence for the officer: a civil action may be brought against the police force, or a complaint may be made, but the officer will continue in their job unaffected.

When you come to believe that a warrant card is a casual device, then – at the extreme – you have the situation in the Sarah Everard case.

An extreme on a scale, and not something isolated.

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Yesterday this blog set out why the whole-life sentence for the murderer of Sarah Everard was spot-on.

Because the offence was committed by means of the use of police power, then it was so exceptionally serious as to warrant an exceptional sentence.

But.

The misuse and abuse of police powers are relevant in many other situations, and the law – and judges – should similarly be alert to their presence, and not just in the extreme cases.

And it should not be for those facing arrest to vet the credentials of an arresting officer.

Still less wave down a bus driver to get them involved and possibly also arrested.

The problem is about how police officers are, in effect, unchecked and (to use a phrase) a law to themselves, with no real accountability.

And this should not be made the responsibility of the arrestee or potential victim.

That bus has passed.

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The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

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The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

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And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

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